What exactly are the Emoluments Clauses? There are in fact two Emoluments Clauses: one Foreign and one Domestic. Constitutional law expert Sujit Choudhry explains.

The Emoluments Clause Gets Its Day in the Sun

Various First Amendment clauses such as the Speech Clause receive their fair share of attention. And, of course, any mention of the Second Amendment’s “right to keep and bear arms,” will generate extensive, often heated, debate. But until recently the Emoluments Clauses have attracted little attention.

But that all changed recently when U.S. District Court Judge Peter J. Messitte ruled in July that a case alleging that President Donald violated both of the Constitution’s anticorruption clauses could move forward.

What exactly are the Emoluments Clauses? There are in fact two Emoluments Clauses: one Foreign and one Domestic.

The Foreign Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, states that “no Person holding any Office of Profit or Trust under them [i.e. the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7, states that “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

The Domestic Emoluments Clause specifically mentions the President, whereas the Foreign Emoluments Clause — whether it was intended to cover the President or not — does not specifically mention the President, and instead refers to a “Person holding any Office”.

But what is an emolument? That question is at the heart of the dispute. Trump has argued that emolument is any compensation for services or from employment or a government office (other than one’s government salary). His opponents have argued that it means any profit, gain, or advantage — that is, anything of value.

So what exactly is this suit about? The plaintiffs, the District of Columbia and the State of Maryland, allege that President Trump retained his financial interest in his Trump International Hotel, just down the street from the White House and that the profits the hotel earned constituted emoluments.

On the foreign side, the plaintiffs have argued that foreign governments have patronized the hotel, as Judge Messitte put it, “with the express intention to cater to the good graces of the President.” For example, the plaintiffs alleged that Saudi Arabia spent thousands of dollars at the Hotel, and that the Embassy of Kuwait moved from another hotel to Trump International to hold its National Day celebration, both in 2017.

On the domestic side, the plaintiffs alleged at least three violations. First, Trump received an emolument from the Federal Government in the form of the GSA Lease, which approves the Hotel’s use of the Old Post Office Building in the District of Columbia. Second, Maine Governor Paul LePage, and his staff stayed at Trump International when they came to D.C. to meet with Trump and other government officials regarding national monuments and parks located in Maine. (The Governor was in D.C. to ask the President Trump to reverse decisions made by President Obama that LePage opposed.) Third, the President received “substantial tax concessions” on the hotel from the District of Columbia.

Before examining the merits of the case, there are three other points to consider. First, the judgment was issued in response of a motion to dismiss, on the basis that the complaint failed to state a claim. The nature of the proceeding required the court to interpret the legal meaning of the Emoluments Clauses and to assume that the alleged facts as true. It is not a ruling on the merits of the constitutional claim.

Second, the decision will be appealed, likely all the way up to the Supreme Court, before proceeding on the merits. Third, there are two other lawsuits pending on the same issues. Citizens for Responsibility and Ethics in Washington lost a similar suit in a Federal District Court in New York, but that decision is currently on appeal. In addition, a suit by nearly 200 Democratic congressional officials is pending before a different federal judge in Washington.

As already noted, the case involves two separate lines of analysis. Because the President is clearly covered by the Domestic Emoluments Clause the issue there is whether what Trump has received can be considered emoluments. There are two issues with respect to the Foreign Emoluments Clause: again, whether the President received emoluments in his capacity as President, but also whether or not the President is subject to the Clause.

In his 52-page opinion, Judge Messitte concluded that the President is subject to the Foreign Emoluments Clause and that the benefits he received through the profits realized — both of domestic and foreign origin — by the Trump International Hotel constituted emoluments. In reaching these conclusions Judge Messitte went on a journey through what was essentially uncharted territory — there had never been a case on these exact issues. His analysis took him through what was meant by the word emolument at the time of the Constitution’s enactment, and whether the Founders intended the President to be subject the Foreign Emoluments Clause. In each case, the judge ruled in favor of the plaintiffs and against the President.

The final point and the bottom line: if the case does survive appeals and goes forward, discovery will undoubtedly require the President to provide tax returns and other financial records that he has heretofore been unwilling to disclose. The case will be interesting to watch.

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